Communal Land Rights Bill: hearings

Meeting report

Portfolio Committee on Agriculture and Land Affairs
11 November 2003
Communal Land Rights Bill: Hearings

This minute was produced kind courtesy of Contact Trust. Their website is at

www.contacttrust.org.za
Communal Land Rights Bill [B67-2003]
Transkei Land Service Organisation (TRANSLO) submission
Women's Legal Centre submission
Sekhukhuneland Ad Hoc Committee submission
TRAC Sustainable Livelihood Programme submission
South African Human Rights Commission submission
Commission on Gender Equality
Kalkfontein Community submission
Madikwe/Moses Kotane, Central and West Regions submission
Ubambano Lwabesifazane submission

SUMMARY
The Committee heard various submissions from civil society organisations that expressd dissent on the first day of the Communal Land Rights Bill Hearings. The Chairperson for the Human Rights Commission, Mr Jody Kollapen, said that the Bill failed to give effect to Section 25 (6) of the Constitution "which confers a right on every community or person whose tenure was insecure as a result of past racially discriminatory laws or practices." The Minister of Land Affairs, Ms Thoko Didiza, tried to allay fears that the transfer of land might be abused by traditional chiefs. She said the land would not be in the name of the chiefs, but rather in the name of the respective communities. Mr Andile Mgxithama of the National Land Committee called for a new process of consultation, while Mr Naby Simukonda of the Trankei Land Service Organisation stated that the Bill would be incapable of addressing problems.

MINUTES
Presentation by Department of Land Affairs
Dr Sibanda stated that Africans who had been forced into reserves during Apartheid currently had access to only 13% of land in SA. A third of SA's population still lived under conditions of insecure tenure. The purpose of this Bill was to establish an efficient system where tenure rights were secured.

Dr Sibanda noted that the Land Tenure Conference in 2001 resulted in the Land Tenure Bill, and had involved much consultation between consultative forums. Dr Sibanda listed a few aims of the Bill, namely:
- to provide options to people living in rural communities by allowing transfer of land and choices to land.
- the creation of strong administrative structures covering all communal land;
- to ensure municipal services to communal land (not stated in Bill); and.
- to strengthen land rights and Land Rights Boards, as well as the composition of such boards.

Dr Sibanda explained that the boards would fulfil a monitoring and evaluative role. The Ingonyama Trust would not be treated as a special body; the only difference was that the board would be monitored by the DLA. The king would assist the board in the transfer of land to the communities. Traditional councils were created as a structure driven by the local and provincial government. These structures would have a function in land administration. There had to be effective representation within groups and stakeholders.

Dr Sibanda discussed the establishment of the Land Rights Board. He stated that the Land Rights Boards were instruments of the state to intervene on land disputes. A board would have one representative from each of the organs of the state determined by the Minister. Two members would be nominated by each Provincial House of Traditional Leaders contemplated in section 212(2)(a) of the Constitution and have jurisdiction in the area of that Board. One member would be nominated by institutions or a person in the commercial or industrial sector, and seven members would be nominated form the affected communities, of whom at least:·two had to be women and one had to represent the interests of child headed households;·one had to represent the interests of the youth as defined in section 1 of the National Youth Commission Act, 1996 (Act No. 19 of 1996);and one member had to represent disabled persons

Traditional leaders would have an active role in advising the Minister on issues affecting communities. Some of the public did not see the Communal Land Rights Bill as being participatory. Section (16) compelled the Minister to be consultative by holding meetings with the public.

Dr Sibanda stated that the Ingonyama Trust would become the Land Rights Board for Kwazulu-Natal, since the Department could not sustain two boards for that region. This Bill could not guarantee the protection of women from discrimination.

The Minister of Land Affairs, Ms Thoko Didiza gave an overview and said it was important to delve into the Communal Land Rights Bill. Prior to 1994, institutional make-ups did not have land ownership and currently land administration in rural South Africa remained informal. To address the various interests of South Africans in terms of the land tenure system, they needed to allow communal ownership.

The Minister related that in 1997, the Department of Land Affairs (DLA) started working on issues of tenure security and the Land Rights Bill. This was then piloted and consulted upon. In 2001, the Department held national consultations in Durban to investigate other forms of land ownership in SA. They had brought in various organisations and groups of traditional leadership. This process led to Public gazetting and it went to Cabinet in 2003. No other Bill had been consulted over a period of six years.

Having conducted groundwork from 1997- 2003, they had taken the needs of rural communities into serious consideration. There had to be sound institutional mechanisms to ensure that equity prevailed. Communal land would be in the name of communities and not in the name of traditional leaders. However, the administration of this land would be administered by democratically elected traditional leaders. The Bill wanted women to participate equally.

Mr D. Maluleke (DA) asked how an individual in possession of a title deed for communal land would apply for a loan from a financial institution.

Dr Sibanda explained that Subsection 2 provided for land held in a communal deed rights. There were loans in the financial market where the banks assessed the credit reputation surrounding investment issues. The rights were not currently registered in terms of the CLRB.

Mr G McIntosh (DA) asked whether leasehold rights were included in the rights.

Mr A. Botha (DA), referring to sections 2 and 3 on the Land Rights Board, enquired about the selection process of the board. Secondly, he asked for a comprehensive view of the Department on the 'individual risk taker.'

Dr Schoeman asked the Director-General to elaborate on the R68 million mentioned in the Bill as financial implications for the state.

The DG replied that should a community choose not to have the board administer their communal land, the government would have to implement a democratic process whereby the land right's enquirer would be required to lodge an inquiry to the people affected in the community.

Dr Sibinda, replying to Mr Botha's question, said that Section 26 (3) of the Bill provided that seven members would be part of the Land Rights Board. It was not currently prescribed how that process would be implemented, but it would form part of the regulations.

Mr Botha responded that should the Communal Land Rights Bill be passed, it would be challenging to enact the Bill.

Dr Broker (DLA) stated that the legal system was the cornerstone of the Bill. It provided for legal rights, a sanctity which the people in communities did not enjoy at present. With regards to the question of individual investors, he did not believe that the Bill provided a framework for management. In terms of making communal land commercially viable, tenure rights were a long term lease. One did not have to be an owner of land for land tenure rights to be viable. Financing became an issue with the provision of municipal services.

The Director-General said that R68 million was only a preliminary figure which the Department still needed to investigate further. The Department was not ready to submit a final cost to the Committee.

The Chairperson responded that the Committee would not pass the Bill without knowing the actual cost.

Mr S. Abram (ANC), referring to the Property Clause in the Bill of Rights,read from Section 25 (6), "A person or community whose tenure of land was legally insecure as a result of past racially discriminatory laws or practices was entitled to the extent provided by an Act of Parliament, either to tenure which was legally secure or to comparable redress." He then asked the Department whether they were certain that the Bill did what the constitution and the government required the Department to do within the state's available resources.

Dr Broker (DLA) replied in the affirmative and added that this was what the land rights enquirer was required to do. There was a distributive element in that the Bill was intended to be as flexible as possible.

Mr Ngema (IFP) commented that the Bill overlooked the structure of legally owning land in the process of giving land to individuals. He asked the Department about their solution to this. Secondly, Mr Ngema asked about the actual election process of the Land Rights Board.

Mr S Farrow (DA) asked Dr Broker to elaborate on long term leases moving from PTO to permanence. He asked whether these leases were bondable and transferable.

Dr McIntosh (DA) said that despite the Bill not being able to guarantee the protection of women, mechanisms should be put in place to prevent women from being exploited. He asked how it was possible for traditional leaders to discriminate against women.

The Chairperson advised the Department not to answer that question as it was a matter of speculation.

Dr Broker stated that the Department was not predisposed that a title should become a lease. That issue was for the land rights enquirer. In many cases, there were competing rights which needed to be reduced in some way. Government had a duty to communities where it was possible to provide legal tenure.

Dr Sibinda replied on the issue of the traditional council that was composed of an elected 40% and the unelected 60% from Cabinet.

The Director-General said that they still needed to work out the mechanisms of how to apply the resource.

Dr Broker said that since some people might want their land to never be transferred out of their community, the Department should allow each community a transfer system, since the Bill provided for the establishment of community rules.

Mr Navy Simukonda - Transkei Land Service Organisation(TRALSO)
For full details of Mr Simukonda's submission, please refer to the attached document.

Discussion
Mr Farrow asked what suggestions Mr Simukonda had to resolve these problems.

Mr Maluleke asked Mr Simukonda's view was on traditional institutions.

Mr Simukonda replied that as long as traditional councils were on the ground, people needed choices. This council had not delivered in the past. Hence, they needed to encourage traditional institutions to see benefits for communities.

Mr Ngethu and Mr Dlali (NCOP) asked Mr Simukonda to elaborate on flaws regarding the marginalisation of women and on solutions.

Mr Simukonda said that the Bill did not entrench the protection of women's participation in these communities.

The Chairperson asked Mr Simukonda why he felt that the Bill was insufficient in entrenching the representivity of women.

Mr Simukonda explained that the situation on the ground in such communities was not conducive to the maximum participation of women. Mr Simukonda suggested that his organisation wanted administrative structures to be put in place that allowed for women to participate in decision-making.

Jody Kollapen - Human Rights Commission (HRC)
For full details of Mr Kollapen's submission, please refer to the attached document.

The South African Human Rights' Commission Chairperson, Mr Jody Kollapen, said that the Bill failed to give effect to Section 25 (6) of the Constitution "which confers a right on every community or person whose tenure was insecure as a result of past racially discriminatory laws or practices." He said that Parliament had failed to give constitutionally consistent guidance to decision-makers.

Discussion
The Chairperson asked Mr Kollapen to elaborate on rights for women. He said that the Bill tried to address issues of representivity of women.

Mr Dlali referred to the past Grootboom case which dealt with socio-economic land issues. He referred to page 2 of Mr Kollapen's submission on challenges and asked Mr Kollapen to elaborate further.

Mr Kollapen said that that had been raised with regards to the Grootboom matter. He said that they needed to ask whether Parliament was passing a Bill that was legally secure to comparable redress.

Mr S. Abram (ANC) commented that the Constitutional requirement, Section 25 (6), needed to be implemented through Parliament. The Minister has been given powers to extend certain rights. If the Minister had discretionary powers in conflict with the Constitution, the Minister could be taken to court.

Mr Kollapen said that Clause 3 of the Bill said that the Minister has powers to subdivide.

Ms Sibongile Ndashe, Women's Legal Centre
After the lunchbreak, Ms Sibongile Ndashe, Attorney of the Women's Legal Centre, presented the attached submission to the committee

Discussion
Chair Masithela called on State Law Advisor, Graphney Seleka, to comment on the constitutionality of the Bill, as the Women's Legal Centre's submission suggested that the Bill was deficient for not addressing the issue of gender in a manner consistent with the Constitution.

Mr Seleka was of the opinion that the Bill was constitutionally sound.

Chair Masithela appealed to presenters to keep submissions to 20 minutes, leaving 10 minutes for members to ask questions.

Ms Makwena Mgwenya (ANC) expressed appreciation for the thorough presentation.

Mrs Cheryllyn Dudley (ANC) asked Ms Ndashe could make specific wording changes that would address her concerns.

Ms Ndashe said that the Women's Legal Centre had not prepared specific wording, but that such could be provided to the Committee at a later date if necessary.

Mr Dladli (ANC) noted that Section 18.4 of the Bill mitigates the Minister's discretionary powers by requiring her / him to take into account other variables when determining the 'old order' rights of affected rights holders, which could parlay a 'new order' right to a women; suggesting that Section 18.4 addresses the Women's Legal Centre's concern relating to 'old order' versus 'new order' rights.

Ms Ndashe explained that Section 18.4 was insufficient, as it does not curb the Minister's discretionary powers elsewhere in the Bill, noting that it does not describe how the Minister can address women's concerns as they relate to 'old order' rights. Section 18.3 demands that redress account for previously enacted rights; however, by custom, women could not previously enact rights as such did not exist.

Mr M Mamogobo, Sekhukhuniland Ad Hoc Committee

Chair Masithela called on Mr M Mamogobo, Representative, Sekhukhuniland Ad Hoc Committee (Limpopo Province), to make a submission to committee members.

Mr Mamogobo presented the attached submission to the committee.

Discussion

Chair Masithela called on committee members for questions relating to Mr Mamogobo's presentation.

An ANC member commented that the Traditional Leadership and Governance Framework Bill does not deal with land allocation or redress, observing that Section 4 of that Bill describes the roles of local governments and traditional councils in such a way that inter-jurisdictional conflict between on land rights is unlikely.

Chair Masithela cautioned members to refrain from commenting on the merits of submission and instead to ask specific questions for clarity and understanding.

Mr Jeebodh (NCOP) related three questions regarding the 'tribute' being paid to Traditional leaders: 1) price, 2) where are these revenues directed, and 3) are land allocation decisions made with consultation between affected communities and traditional councils?

Mr Mamogobo explained that tribute amounted to fees being applied by traditional leaders that stay within the royal family, and are not redistributed amongst the community.

Chair Masithela enquired whether Mr Mamogobo was speaking about his experience in the Limpopo Province or making allegations about the actions of traditional leaders across South Africa.

Mr Mamogobo explained that his comments were related to his local experience.

Ms Ngwenya (ANC) asked whether Mr Mamogobo could recommend a better way to convey land rights for the rural poor than the interplay between the Traditional Leadership and Governance Framework Bill and the Communal Land Rights Bill?

Chair Masithela asked whether Section 6(b)iii did not address some of the concerns expressed in the submission.

Mr Mamogobo explained that indeed it did, but that the process provided was too time consuming.

Mr Thulani Mhlanga, TRAC - Sustainable Livelihood Programme

Chair Masithela again encouraged members to ask specific questions of clarity and understanding, and called on Mr Thulani Mhlanga, Programme Officer, TRAC - Sustainable Livelihood Programme (Mpumalanga Province), to make a submission to committee members.

Mr Mhlanga presented the attached submission to the committee.

Discussion

Chair Masithela thanked Mr Mhlanga for his presentation and invited committee members to ask questions.

Mr Salamuddi Abram (ANC) suggested that the presentation makes erroneous statement, and questioned who 'local elites' were that have benefited from fees paid to traditional leaders; he further suggested that some of the problems expressed in the submission had legal recourse that had seemingly not been followed.

Mr Mahlangu explained that traditional leaders absorb fees and do not reinvest these revenues in the community, sometimes distributing them to tribal authorities.

Mr Ngema (IFP) suggested that gender equity provisions in the Traditional Leadership and Governance Framework Bill and Land Administration Committees set out minimums, noting that in application a greater ratio of women and the inclusion of more representative women would be possible. Mr Mdabi explained that no one Bill would address the plight of Women in South Africa and that the transition to full gender equity would demand attention in all legislation.

Mr Mhlangu explained that some structures being developed to include women in land distribution decisions rely on appointment and not election, implying that, by custom, women likely to be appointed are removed from the challenges faced by impoverished, local/rural women.

Mr Ngema expressed concern that the submission suggests that traditional leaders gain position by force, but that in the member's experience (in his province) the contrary is true, traditional leaders are supported by their people.

Chair Masithela suggested to Mr Mahlangu that the question Mr Ngema had posed related to whether the problems he had identified were the norm or the exception.

Mr Mhlanga explained that his comments were germane to the Mpumalanga Province, where 70 per cent of traditional leaders abuse their position.

Mr Ngema inquired whether the fees being collected by traditional leaders were collected a personal funds or community revenues.

Mr Mahlangu explained that these fees were being kept for personal use.

Mr Stuart Brian Farrow (DA) suggested that, provided the assertions made in Mr Mdabi's submission were true, his community was likely to find joy through the courts.

Chair Masithela adjourned the public hearing for Tea.

Mr Andile Mgxithama, National Land Committee

Chair Masithela reopened the public hearing by inviting Mr Andile Mgxithama, Land Rights Co-ordinator, National Land Committee, to make a submission to committee members.

Mr Mgxithama presented the attached submission to the committee.

Chair Masithela interrupted Mr Mgxithama presentation to excuse Members of the National Assembly to vote in Parliament on another Bill; Mr Mgxithama was permitted to complete his presentation when members returned.

Mr Mgxithama completed his submission to the committee.

Parliament's Integrity

Chair Masithela expressed concern that some of Mr Mgxithama's comments brought into question parliament's integrity. Chair Masithela explained that Mr Mgxithama's remarks regarding the reception the National Land Committee received by Mr Y I Carrim, Chair of the Portfolio Committee on Provincial and Local Government, and by that Committee's members was opinion, and that there concerns had not been ignored by the Committee. Chair Masithela explained that he had communicated with Mr Carrim over the break for voting and that, contrary to Mr Mgxithama's submission, the Committee had taken into consideration the National Land Committee's submission, but had decided not to adopt some of their recommendations. Chair Masithela explained that some of the accusations made of the Portfolio Committee on Provincial and Local Government discoloured the integrity of Parliament and were false; he elucidated on his comments saying that he did not want members of the public to leave his public consultation with the belief that the Rules of Parliament were not being followed.

Discussion

Chair Masithela encouraged submissions to make specific recommendations, noting that requesting the Bill to be wiped out was leading with the wrong foot.

Dr Renier Stephanus Shoeman (ANC) expressed concern that the Department's consultation process seemed flawed, and that this did not reflect poorly on Parliament or the Committee, but would if the Committee continued to move forward without acknowledging that the breadth of Departmental consultation was problematic.

Chair Masithela agreed that Departmental consultation was an area of interest to the Committee, but that the public consultation was not the time to address this concern.

Mr Hans Ngethu (ANC) asked what specific discretionary powers were conveyed to the Minister that were of concern to Mr Mgxithama, and what he believed the impact of these discretionary powers would be on communities.

Mr Mgxithama explained that the Minister is given discretionary powers, and 'may' consult stakeholders, but that the Minister can make decisions without consulting. The problem is not that the Minister has power, rather that the possibility exists for this power to be abused. On the point of power, Mr Mgxithama said that power was being transferred to traditional authorities that were not elected and inherently undemocratic, meaning that government was indirectly deciding a structure of imposing land rules.

Mr Dlali expressed concern that Mr Mgxithama's submission seemed undefined, both expressing concern for the notion of rules, while calling for more of them.

Mr Bheki Radebe (ANC) expressed concern for the submission's inherint contradiction, that the Minister needs both less and more power.

Mr Mgxithama explained that the Minister could have powers, but that checks and balances should temper what the Minister can unilaterally do.

Chair Masithela inquired into Mr Mgxithama's constituency.

Mr Mgxithama explained that the National Land Committee was not a community-based group, but rather a network of seven NGO's that work with community-based groups.

Chair Masithela asked when the National Land Committee had first been consulted.

Mr Mgxithama explained that a single date is difficult to establish; the process started in 1996, but the Bill had thirteen different versions, each very different from the other, so consultation on the first draft was a very different conversation than consultation on the Bill being considered by the Committee. Mr Mgxithama said that the latest consultation would likely have been two months ago.

Chair Masithela explained that the question was asked so that the Committee would be able to appropriately discuss the matter with Department officials.

Parliament's Integrity (2)
Mr Y. Carrim (Chairperson of the Portfolio Committee for Provincial and Local Government ) asked if he could respond to the concerns expressed in Mr Mgxithama submission.

Chair Masithela indicated that Mr Carrim would not be able to speak, noting that he (Chair Masithela) had already spoken to the merits of Mr Mgxithama's comments that cast shade onto Mr Carrim and the Portfolio Committee on Provincial and Local Government.

Stephen Tongwana, Kalkfontein Community

Chair Masithela invited Stephen Tongwana, Representative, Kalkfontein Community (Mpumalanga Province), to make a submission to committee members.

Mr Tongwana presented the attached submission to the committee.

Discussion

Chair Masithela called on committee members for questions.

Mr Farrow (DA) inquired whether the Kalkfontein Community administered its own land.

Mr Tongwana explained that they do, but that they did so under court order, not as proper owners.

Chair Masithela asked why trespassing eradication notices had not been applied against traditional leaders occupying land, if community members are trustees.

Mr Tongwana explained that the land in question had been sub-divided into thirds, of which the court order awards two thirds to community members.

Mr Mbadi asked whether the title for the three sections was not under the same name, which would make whoever is occupying the third section a trespasser.

Mr Tongwana said that the court order only provides the community title for two of the three sections.

A member asked what specifically was of concern in Sections 21 and 22.

Mr Tongwana explained that the provision itself was less a concern as the possibility of Traditional Leaders overstepping their authority.

Mr Abram inquired into the current status of the land under consideration.

Mr Tongwana said that the community had been requesting the Department of Land Affairs to transfer title to the Kalkfontein Community, but that the community had yet to receive a response from the Department, leaving the land in question in the Minister's name and their occupancy by way of the court order.

Chair Masithela asked what Mr Tongwana's specific problem was with the Bill.

Mr Tongwana explained that it was the Traditional Authority that was of concern, not the Bill per se.

Mr Mputhumi Myekiso, Masifunde Education Development Trust

Chair Masithela thanked Mr Tongwana for his presentation and called on Mr Mputhumi Myekiso, Director, Masifunde Education Development Trust, to make a submission to committee members.

Mr Myekiso presented the attached submission to the committee.

The monitor was unable to minute the rest of the discussion as the meeting went on well into the evening. The completed minute will be put on the website as soon as the later session report is received from the Committee Secretary.